Jurisdiction as Sovereignty Over Occupied Palestine: The Case of Khan-al-Ahmar Panepinto, A. M. (2017). Jurisdiction as Sovereignty Over Occupied Palestine: The Case of Khan-al-Ahmar. Social and Legal Studies, 26(3), 311 - 332 . https://doi.org/10.1177/0964663916668002 Published in: Social and Legal Studies Document Version: Peer reviewed version Queen's University Belfast - Research Portal: Link to publication record in Queen's University Belfast Research Portal Publisher rights © 2016 The Author(s). This work is made available online in accordance with the publisher’s policies. Please refer to any applicable terms of use of the publisher. General rights Copyright for the publications made accessible via the Queen's University Belfast Research Portal is retained by the author(s) and / or other copyright owners and it is a condition of accessing these publications that users recognise and abide by the legal requirements associated with these rights. 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Sep. 2021 Jurisdiction as Sovereignty over Occupied Palestine: The Case of Khan-al-Ahmar August 16 This is an accepted draft – the final article was first published in Social & Legal Studies 23 September 2016 (DOI 10.1177/0964663916668002) and then in Vol 26, Issue 3, 2017 Jurisdiction as Sovereignty over Occupied Palestine: The Case of Khan-al- Ahmar Abstract In the context of prolonged occupation, it has long been argued that the Israeli Supreme Court, in High Court of Justice formation, is facilitating the entrenchment of a permanent regime of legalised* control by moving away from a model of exception to ordinary civilian jurisdiction over the West Bank. This was recently demonstrated in the Khan-al-Ahmar case, in which a group of settlers petitioned the ISC/HCJ demanding the execution of a pending Israeli demolition order over a school in a Bedouin village in Palestine. The court sided with the army, deferring to a political solution for the transfer of the entire Bedouin community elsewhere. Drawing on existing scholarship and the author’s first-hand impressions of the final hearing, this article interprets the Khan-al-Ahmar case as an illustration of how the exceptional military nature of the occupation has shifted to a permanent regime of legalised control overseen by an ordinary civilian court. * Please note: in this phrase, ‘legalised’ describes compliance to procedural standards set out in existing laws and related judicial practices; it does not refer to elements of substantive justice of said laws and judicial practices. Keywords: Palestine, West Bank, jurisdiction, Israeli Supreme Court/High Court of Justice, occupation Page 1 of 38 Jurisdiction as Sovereignty over Occupied Palestine: The Case of Khan-al-Ahmar August 16 Introduction While exiting the courtroom after the final Khan-al-Ahmar hearing of 23rd April 2014, the legal counsel representing the Bedouins before the Israeli Supreme Court in High Court of Justice formation (ISC/HCJ) described the entire trial as ‘Kafkaesque’. The judges did not give him the opportunity to speak on behalf of his Palestinian clients, whose tiny community east of Jerusalem was caught in a legal battle between the Israeli state and Israeli settlers over the timings of the demolition of the village school to facilitate settlement expansion. And although the court did not order the execution of the demolition as the settlers had demanded, the Khan-al-Ahmar judgment did not constitute a victory for Palestinians. Instead, by deferring to a political solution, the ISC/HCJ reaffirmed its full integration within the Israeli institutional framework and, consequently, its inherent inability to adjudicate fairly over matters involving Palestinian rights in Palestinian territory. In Kfar Adumim Community Settlement v Minister of Defense, settler representatives of Kfar Adumim petitioned the Israeli Ministry of Defence demanding the execution of a pending demolition order over the ‘tyre school’ in the adjacent Khan-al-Ahmar Bedouin village (UNRWA, 2009). The settlers argued that the makeshift school buildings had not received the proper Israeli planning permission; moreover, its location fell within the proposed expansion area of Kfar Adumim, granting them standing in the case. The trial was conducted as an ordinary judicial review between Israeli citizens (representatives of Kfar Adumim) and the Israeli Page 2 of 38 Jurisdiction as Sovereignty over Occupied Palestine: The Case of Khan-al-Ahmar August 16 state (listed as ‘respondents 1-3’: Minister of Defense, Commander of the Central Defence, IDF and Israeli Civil Administration). The Bedouin community whose school was the object of the dispute was listed in the trial documents as a secondary group of respondents (‘respondents 4-6’: Suleiman Ali Arara, Muhammad Szliman Alkushran and Ibrahim Hamis Jahalin). The judges ultimately sided with the state and did not enforce the demolition order, deferring instead to an Israeli plan to relocate the entire Khan-al-Ahmar community to a different location in the West Bank. So in effect, the ISC/HCJ reaffirmed that the fate of the school as well as the future of this Bedouin community fell squarely within the sovereign remit of the Israeli state – be it the army, the courts, or the Knesset – regardless of the fact these people were Palestinians living in Palestine. The Khan-al-Ahmar case is not exceptional. It illustrates the ISC/HCJ’s role in legitimising Israeli control over Palestine, favouring Israeli interests over Palestinian rights, a critique proposed for decades (e.g. Shehadeh, 1985; Shamir, 1990; Sultany, 2014; Weill, 2015). David Kretzmer (2002: 2-3) has suggested that ‘the main function of the Court has been to legitimize the government’s actions in the Territories’, both when the ISC/HCJ sides with the state authorities, and when it opposes them (also Shamir, 1990); as such, it plays a crucial role in maintaining and upholding the occupation (Kretzmer, 2002; Al-Haq, 2010; Harpaz and Shany, 2010: 515) alongside military courts (Dinstein, 2009: 132; Arai-Takahasi, 2009: 145-166). The framework that underpins the Khan-al-Ahmar case is the ISC/HCJ’s judicial review over the actions of state agents, which from the early days of the Page 3 of 38 Jurisdiction as Sovereignty over Occupied Palestine: The Case of Khan-al-Ahmar August 16 occupation has extended outside Israeli sovereign territory to cover military activities in Palestine (Kretzmer, 2002: 1; 19-21). The ISC/HCJ’s jurisprudence has given Palestinians the possibility to petition against actions carried out by the Israeli military or under the aegis of the military (Shamir, 1990: 785; Dinstein, 2009: 25-26, Weill, 2015: 2). But the court has also extended this right to Israelis in Palestine: based on a widely criticised interpretation of Art 43 of the Hague Regulations, it considers Israeli settlers part of the ‘local population’ (Kretzmer, 2002: 65), distorting the purpose of international humanitarian law (IHL) and disregarding the illegality of transferring parts of the occupying power’s population to occupied territories (Art 49(6) Fourth Geneva Convention (GCIV)). Reflecting on the significance of the Khan-al-Ahmar case, this article considers how the ISC/HCJ’s far-reaching and unimpeded jurisdiction over the West Bank and Palestinians, teamed with its institutional relationship with the Israeli state, is constructing Israeli sovereignty over Palestine in the language of civilian law. More generally, this research explores how cases like Khan-al-Ahmar contribute to transforming a military occupation into quasi-annexation, to the detriment of individual Palestinian rights as well as Palestinian territorial integrity. Drawing loosely on the notion of ‘transformative occupation’ furthered by Nehal Bhuta (2005) and Adam Roberts (2006), this paper describes the Israeli control over Palestine a ‘permanent regime of legalised control’,1 in contrast to the exceptional temporary nature of military occupation, which is now paradoxically in its fiftieth 1 In this phrase, ‘legalised’ describes compliance to procedural standards set out in existing laws and related judicial practices; it does not refer to elements of substantive justice of said laws and judicial practices Page 4 of 38 Jurisdiction as Sovereignty over Occupied Palestine: The Case of Khan-al-Ahmar August 16 year. The notion of a permanent regime of legalised control is also distinct from both the concept of extraterritorial jurisdiction and from sovereignty, although it shares many of its features and effects. The Khan-al-Ahmar judgment provides a recent example of how the ISC/HCJ implements the permanent regime of legalised control over the West Bank, demonstrating how formal proceedings and law facilitate the Israeli grip over Palestine, without having to openly resort to armed force. The Khan-al-Ahmar case provides an illustration of how law, and in particular trials, helps mask political abuse in how Israel deals with Palestinian matters. The legalistic nature of the Israeli occupation was widely discussed at the 1988 Al-Haq conference in Jerusalem (Playfair, 1992: 205). More recent socio-legal scholarship illustrates